12/26/2012

The Interpretation-Construction Distinction and Original Methods OriginalismMike Rappaport

Over at the Legal Theory Blog, Larry Solum has a Legal
Theory Lexicon post on The Interpretation-Construction Distinction. The post is an excellent one and Larry has
certainly done much to develop this distinction.

Larry does not mention, however, that there have been
significant criticisms made of the distinction.
In this article, which I wrote with John McGinnis, we criticize the
distinction on theoretical, historical, and policy grounds:

This article defends an interpretive approach that we call
"original methods originalism." Under this approach, the Constitution
should be interpreted using the interpretive methods that the constitutional
enactors would have deemed applicable to it. Thus, many of the key questions
that arise about constitutional interpretation - such as whether intent or text
should be its focus and whether words should be understood statically or
dynamically - are answered based on the content of the interpretive rules in
place at the time of enactment.

Original methods originalism provides the best way of determining the actual
original meaning of the Constitution. The two leading approaches to determining
the original meaning are original intent and original public meaning. We show,
however, that the correct application of both of these approaches requires that
they follow the original interpretive rules. Thus, both original intent and
original public meaning lead to original methods originalism. While the
original methods approach requires that the Constitution be interpreted in
accordance with the original interpretative rules, the rules at the time could
conceivably have required that the Constitution be interpreted as a living
document. But we provide strong evidence that these interpretive rules were
essentially originalist as that term is conventionally understood.

As well as focusing on the positive aspects of the original methods approach -
its semantic account of the Constitution's meaning - we also show that original
methods originalism is normatively attractive. Enacting a constitution through
a strict supermajoritarian process, like the one that was used in the United States,
is likely to produce a beneficial constitution. But for the constitution to
have this desirable quality, it must be given the meaning on which its enactors
voted. That meaning requires reference to the interpretive rules existing at
the time.

The original methods approach contrasts with current theories of constitutional
construction. The "constructionist originalist" believes that
original meaning controls the interpretation of provisions that are not
ambiguous or vague, but that constitutional construction provides judges and
other political actors with discretion to resolve ambiguities and vague terms
based on extraconstitutional considerations. We find no support for
constitutional construction, as opposed to constitutional interpretation, at
the time of the Framing. The enactors would have expected such matters to be
interpreted based on the original interpretive rules, but constitutional
constructionists substitute extraconstitutional resolutions for those passed
through the supermajoritarian process. Constitutional construction also
exacerbates agency costs, because it allows interpreters to employ discretion
rather than requiring them to follow the guidance furnished by the original
constitution-making process.

A modified version of this article will appear in our book
forthcoming in 2013 from Harvard University Press.